PAUL L. SMITH, PETITIONER V. UNITED STATES OF AMERICA
No. 89-7425
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A8) is
unreported.
JURISDICTION
The judgment of the court of appeals was filed on February 26,
1990. The petition for a writ of certiorari was filed on May 7, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the district court abused its discretion by failing to
sever petitioner's trial from that of his co-defendants.
2. Whether the evidence was sufficient to show that petitioner had
converted a "thing of value" of the United States within the meaning
of 18 U.S.C. 641.
3. Whether the district court committed plain error by failing to
instruct the jury that the conversion of abandoned property does not
violate 18 U.S.C. 641.
STATEMENT
After a jury trial in the United States District Court for the
Eastern District of Virginia, petitioner was convicted of conspiracy
to convert property of the United States, in violation of 18 U.S.C.
371, and conversion of property of the United States, in violation of
18 U.S.C. 641. He was sentenced to two years' imprisonment, with all
but 120 days suspended, and three years' probation. He was fined
$2,500. The court of appeals affirmed. Pet. App. A1-A8.
1. Petitioner, a civilian employee at the Norfolk Naval Supply
Center (NNSC), participated in the unauthorized sale and disposal of
gas storage cylinders. Petitioner worked in a supply shed at NNSC
where the cylinders were stored to await repair or disposal. Some of
the cylinders belonged to the Navy; others were commercial cylinders
that had been abandoned or left unclaimed. The Navy sold unusable
cylinders as scrap metal at auction and sold or recycled reusable
cylinders. Pet. App. A7-A8; Gov't C.A. Br. 6. The Navy earmarked
the funds obtained from the disposal of commercial cylinders for
repayment of the owners if they later came forward to claim their
cylinders. Pet. App. A7.
Because the Navy had an excessive number of cylinders, petitioner's
supervisor told petitioner to dispose of them "in any way possible."
Pet. App. A3. Thereafter, petitioner gave away or sold both
government and commercial cylinders on numerous occasions. Petitioner
occasionally received payment for the cylinders. He also provided
false paperwork that allowed the purchasers to pass the security gate
at NNSC. Pet. App. A5-A6; Gov't C.A. Br. 7-8. On April 26, 1985,
petitioner gave 256 carbon dioxide cylinders and false paperwork to
William Brown, a truck driver for co-defendant Mid-Atlantic Carbonics.
Gov't C.A. Br. 9.
2. The indictment charged petitioner, two other individuals, and
three corporations in 32 counts. Prior to trial, co-defendants Gary
T. Moore, Certified Testing Corporation, and Cylinder Specialists,
Inc., pleaded guilty to Count One charging conspiracy to commit wire
fraud. Moore also pleaded guilty to Counts 2 through 21 charging wire
fraud. The remaining 11 counts charged that petitioner had conspired
with the other five defendants to convert cylinders (Count 22); that
Moore had committed wire fraud in connection with the conversion of
cylinders (Count 23); that petitioner and Moore had converted the
cylinders taken on April 26, 1985 (Counts 24, 25, and 32); that
co-defendant Robert L. Mack had converted cylinders on three occasions
(Counts 26-29); and that Mack had committed two acts of mail fraud in
connection with the conversion of cylinders (Counts 30 and 31).
Prior to trial, petitioner moved for severance from his
co-defendants, claiming that because he was named in only two counts
of the indictment, he would be prejudiced by a lengthy joint trial
with his co-defendants. The district court denied this motion. Pet.
App. A5.
3. The court of appeals affirmed. Pet. App. A1-A8. It first held
(id. at A5-A6) that the district court had not abused its discretion
by failing to sever petitioner's trial from that of his co-defendants.
The court noted particularly that petitioner had been charged with
participating in the same conspiracy as the other defendants. The
court also rejected (id. at A6-A7) petitioner's claim that the
cylinders were not "thing(s) of value" of the United States within the
meaning of 18 U.S.C. 641. The court found that the cylinders had
value to the United States because they could have been sold at
auction for scrap. It also noted that the government may have had a
fiduciary interest in the commercial cylinders because it earmarked
the funds received from the sale of those cylinders for repayment of
the owners. Finally, the court found (id. at A7-A8) that the district
court had not erred by failing to instruct the jury that if the
cylinders had been abandoned by the government or the defendants
believed them to have been abandoned, then the defendants could not be
convicted of converting the cylinders. The court noted that the plain
error standard applied with respect to that issue because the
defendants "did not request a jury instruction on abandonment." Id. at
A8.
ARGUMENT
1. Petitioner renews his contention (Pet. 8-10) that the district
court abused its discretion by failing to sever his trial from that of
his co-defendants. He argues that the evidence against him
constituted a small part of the government's evidence at trial and
that he was prejudiced by the disparity in evidence. This fact-bound
claim is without merit and does not warrant review by this Court.
As petitioner acknowledges, to prevail in challenging the district
court's ruling on a motion to sever, he must show that the district
court abused its discretion (see Opper v. United States, 348 U.S. 84,
95 (1954)), and that as a result he suffered substantial prejudice.
See United States v. Lane, 474 U.S. 438, 449 (1986). A disparity in
evidence between co-defendants, standing alone, does not justify a
severance. See United States v. Martin, 866 F.2d 972, 979 (8th Cir.
1989); United States v. Pinto, 838 F.2d 426, 434 (10th Cir. 1988);
United States v. Cresta, 825 F.2d 538, 554-555 (1st Cir. 1987), cert.
denied, 486 U.S. 1042 (1988); United States v. Polizzi, 801 F.2d
1543, 1554 (9th Cir. 1986).
In this case, petitioner has not shown that he suffered any
prejudice. Petitioner was charged in the same conspiracy count as the
other five defendants. Defendants jointly indicted for conspiracy
ordinarily should be tried together. See United States v. Martin, 866
F.2d at 979; United States v. Keck, 773 F.2d 759, 764-765 (7th Cir.
1985). /1/ Moreover, the substantive count on which petitioner was
charged and six of the nine other remaining counts alleged offenses
that were part of the conspiracy. Thus, as the court of appeals
found, the district court did not abuse its discretion in denying
petitioner's severance motion.
2. Petitioner next claims (Pet. 11-12) that the commercial
cylinders that he participated in removing from NNSC were not
"thing(s) of value of the United States" within the meaning of 18
U.S.C. 641. /2/ He maintains that the evidence showed that the
government had abandoned the cylinders. He also argues that the
evidence showed that he believed the cylinders to be abandoned and
thus that he lacked the intent to convert the cylinders. The court of
appeals correctly rejected that claim.
Property is a "thing of value of the United States" within the
meaning of Section 641 if the United States has an interest in the
property. To show such an interest in property, the government must
prove that the United States maintained supervision and control over
the item; it need not prove actual ownership. See United States v.
Wheadon, 794 F.2d 1277, 1284 (7th Cir. 1986), cert. denied, 479 U.S.
1093 (1987); United States v. Von Stephens, 774 F.2d 1411, 1413 (9th
Cir. 1985); United States v. Benefield, 721 F.2d 128, 129 (4th Cir.
1983); United States v. Evans, 572 F.2d 455, 474 (5th Cir.), cert.
denied, 439 U.S. 870 (1978). In this case, the evidence showed that
authorization was necessary to remove an item from the Navy's control
at NNSC. Thus, the Navy maintained supervision and control over the
cylinders at NNSC. In addition, the Navy recycled or sold both the
government cylinders and the commercial cylinders for scrap, and,
therefore, had an interest in the cylinders. On this basis, the jury
could properly conclude that the Navy had not abandoned the cylinders.
The government also introduced sufficient evidence to show that
petitioner had the requisite intent to convert the cylinders. The
evidence showed that, on a few occasions, petitioner had received
payment for the cylinders. In addition, petitioner had prepared false
paperwork to enable the cylinders to leave NNSC. Pet. App. A5-A6;
Gov't C.A. Br. 7-8. Thus, the evidence was sufficient to show that
petitioner did not believe that the cylinders had been abandoned by
the government.
3. For the same reasons, petitioner was not prejudiced by the
district court's failure to instruct the jury that the defendants
could not be convicted of converting abandoned property. Petitioner
did not request such an instruction, and thus the court's failure to
give it must rise to the level of plain error to justify reversal.
See Fed. R. Crim. P. 30, 52(b). To show plain error, petitioner must
show an "egregious" error amounting to a miscarriage of justice. See
United States v. Young, 470 U.S. 1, 15 (1985). Because the jury was
instructed that the government must have an interest in the property
forming the basis for the Section 641 counts and because the
government introduced evidence from which the jury could properly
conclude that the government had not abandoned the cylinders, no
miscarriage of justice occurred on account of the district court's
failure to instruct the jury, on its own motion, regarding
abandonment. Accordingly, review of this claim is unwarranted.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
J. DOUGLAS WILSON
Attorney
JULY 1990
/1/ Petitioner was not prejudiced by the inclusion in the
indictment of another count charging a separate conspiracy, because
the defendants charged in that count pleaded guilty to it prior to
trial. For this reason, petitioner's argument is not supported by
United States v. Castro, 829 F.2d 1038, 1044-1045 (11th Cir. 1987), in
which the court of appeals found that a defendant who had participated
in one conspiracy was improperly joined to defendants who had
participated in a separate conspiracy.
/2/ That statute provides, in pertinent part:
Whoever * * * knowingly converts to his own use or the use of
another, or without authority, sells, conveys or disposes of any
* * * thing of value of the United States * * * shall be fined
not more than $10,000 or imprisoned not more than ten years, or
both.